In the light of claims that self-defence is now illegal in Britain,
readers might be interested in my post at
http://cgi.cse.unsw.edu.au/~lambert/cgi-bin/blog/2004/07#gullible4
It's rather long so I'll just post a few extracts:
Joyce Lee Malcolm, writing about British law on self-defence:
That willingness was further undermined by a broad revision of
criminal law in 1967 that altered the legal standard for
self-defense. Now everything turns on what seems to be
"reasonable" force against an assailant, considered after the
fact. As Glanville Williams notes in his Textbook of Criminal Law,
that requirement is "now stated in such mitigated terms as to cast
doubt on whether it [self-defense] still forms part of the law."
Malcolm has doctored the quote from Glanville Williams to reverse its
meaning. The word "it" does not refer to self-defence as Malcolm's
addition to the quote indicates, but to the requirement that the
defender's belief that his actions were necessary had to be a
reasonable belief. If this requirement is no longer part of the law it
makes it easier to plead self-defence.
Here is the entire paragraph that Malcolm pulled her quote from. It is
is clear that "it" refers to "The requirement of reasonableness" and
not to "self-defence":
The requirement of reasonableness is unhappy. Enough has been said
in criticism of it, and the CLRC has recommended that it should be
expunged from the law. In practice, as we have seen, the
requirement may be construed indulgently to the defendant, for, as
Holmes J memorably said in the United States Supreme Court,
"detached reflection cannot be demanded in the presence of an
uplifted knife." As we shall see in the next section, the
requirement is now stated in such mitigated terms as to cast doubt
on whether it still forms part of the law.
...
[Big table giving results of a dozen cases]
There is a pattern here. In the obvious cases of self-defence, the
ones where the fatal wound was inflicted in the front, the killer was
not prosecuted. This alone disproves Baker's assertion that
self-defence in England is practically illegal. The cases involving
back-stabbing or back-shooting were prosecuted. These cases are not
obviously self-defence, though it is possible they might have
been. Kevin Baker argues (writing about the Hastings case):
Yes, the burglar was stabbed in the back. So? If you're grappling
with an attacker with a knife in your hand, where is the blade
going to go?
The trouble with this is that we have less information than the
jury. If Hastings had been grappling with the burglar when he stabbed
him in the back then his lawyer would have made sure that the jury
knew this. If you want to argue that jury decided the case wrongly it
is not sufficient to speculate that there were some additional facts
that would prove it was self-defence -- you have to find and present
those facts. As it happens, when Hastings was stabbing the burglar in
the back again and again, the burglar was not grappling with him but
lying face down outside the house.
--
Tim
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